Commissioner of Domestic Taxes v Temenos East Africa Limited (Miscellaneous Application E291 of 2025) [2026] KEHC 834 (KLR) (Commercial and Tax) (29 January 2026) (Ruling) Neutral citation: [2026] KEHC 834 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI (MILIMANI COMMERCIAL COURTS) COMMERCIAL AND TAX MISCELLANEOUS APPLICATION E291 OF 2025 PM MULWA, J JANUARY 29, 2026 BETWEEN COMMISSIONER OF DOMESTIC TAXES .......................................... APPLICANT AND TEMENOS EAST AFRICA LIMITED ............................................... RESPONDENT RULING 1. For determination is the Applicant’s Notice of Motion dated 18th March 2025 filed pursuant to Rule 4 of the Tax Appeals Tribunal (Appeals to the High Court) Rules 2015 and Articles 23 and 159 of the Constitution. 2. The Applicant majorly prayed for orders that the Court do extend time for filing of Notice of Appeal, Memorandum of Appeal and Record of Appeal in the matter as against the judgment of the Tribunal issued on 5th April 2024. 3. The background of this matter is well captured in both the Supporting Affidavit of George Ochieng, advocate for the Applicant sworn on 18th March 2025, as well as the Replying Affidavit of Kelvin Bett, the Statutory Controller of the Respondent sworn on 3rd April 2025. 4. The two depose on how the Applicant being dissatisfied with the decision of the Tribunal filed an appeal (HCCOMM ITA No. E136 of 2024) which turned out had been filed without the leave of the Court as the notice and memorandum of appeal were filed out of time. The Respondent then applied to have the appeal struck out on those grounds and the Applicant (then Appellant) rushed to counter that by filing an application similar to the one herein, seeking extension of time within which to file the notice and memorandum of appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/834/eng@2026-01-29 1
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5. The Court (Hon. B.M. Musyoki, J.) in Appeal No. E136 of 2024 went on to decline the orders sought by the Applicant and struck out the appeal in a ruling delivered on 20th December 2024. The Court observed that the Applicant ought to have sought leave first then file an appropriate appeal. That, I believe is what prompted the Applicant to institute the instant application. 6. There is no denying by either party that there was delay in filing the appeal and the question is whether that delay has been sufficiently explained. 7. The conduct of the Applicant is key here. In the appeal which was struck out, the Applicant waited until it was prompted by the Respondent’s application to realise that the appeal had been filed out of time. 8. In the case of Jedida Alumasa & 3 others v S.S. Kesitany, Civil Application No. NAI 337 of 1996 the Court stated that: “ It is now established that a litigant whose appeal has been struck out has the liberty to restart the appellate procedures, provided he can be able to come to court promptly for an order extending time, at least to lodge a fresh notice of appeal…” 9. In the instant case the Applicant’s appeal was struck out on 20th December 2024 and brought this application on or about 18th March 2025, that is a period of three (3) months. 10. Even assuming there were good grounds for the delay in the first instance, the time taken in bringing this application, is so inordinately long as to enable me to say that the Applicant is deserving of the exercise of the undoubted discretion that I have to grant the orders sought. 11. Having considered the reasons advanced, I am not satisfied that the delay is adequately explained. The delay in bringing this application is long and inordinate by any standards. 12. For the reasons I have given above, the most appropriate order to make is to find the application is without merit and dismiss the same with no order as to costs. I so order. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 29TH DAY OF JANUARY 2026. P.M. MULWA JUDGE In the presence of: Ms. Onyango for Applicant Mr. Ngugi Kimani for Respondent Court Assistant: Carlos https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/834/eng@2026-01-29 2
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